Attorneys for a former suburban day care worker found guilty of murder in a child's death appeared in Lake County court Tuesday morning as a judge considers whether to advance their efforts to overturn her conviction.

Judge Daniel Shanes, who oversaw the 2011 trial that ended with Melissa Calusinski being convicted of first-degree murder, did not rule on whether he will allow a hearing on what her lawyers say is new evidence in the case.

Shanes said he has a stack of legal filings "a foot and a half" high to go through before he rules, but he set another hearing for June 13.

Calusinski's attorneys say X-rays discovered in the Lake County coroner's office last year show that the boy who died in 2009 after being in her care — 16-month-old Benjamin Kingan, of Deerfield — passed away as a result of pre-existing head injuries.

Prosecutors have long contended that Benjamin's death resulted from Calusinski slamming his head to the ground when she worked at Minee Subee child care center in Lincolnshire. The Carpentersville woman, now 29, confessed as much during a 10-hour interrogation, but she and her lawyers have said the confession was coerced by law enforcement officials who misled her, took advantage of her naivete and relatively low IQ, and relied on faulty information from the autopsy.

Calusinski, whose case has since gained national attention, was sentenced to 31 years in prison.

Paul Calusinski, father of Melissa Calusinski, speaks about his daughter's case after a status hearing at the Lake County Courthouse in Waukegan on April 26, 2016. (Stacey Wescott / Chicago Tribune)

Paul Calusinski, father of Melissa Calusinski, speaks about his daughter's case after a status hearing at the Lake County Courthouse in Waukegan on April 26, 2016. (Stacey Wescott / Chicago Tribune)

"We must figure out why the X-rays were legible, at time of prosecution, then illegible when produced to defense and then discovered in legible condition, again ... years later," said attorney Kathleen Zellner, who is handling Calusinski's appeal and has been involved in several other high-profile cases.

The Lake County state's attorney's office has sought to have the motion for a new hearing dismissed. Officials have said the new X-rays are merely brightened up versions of those provided to Calusinski's defense before her trial and don't change their stance that Benjamin received a fatal injury from Calusinski at the day care center the day he died.

Lake County's coroner, Dr. Thomas Rudd, announced last year that he had reclassified Benjamin's death from homicide to "undetermined," citing the purportedly new X-rays he said were discovered in his office. The pathologist who performed the autopsy later signed a statement saying that he missed an old injury Benjamin had suffered, according to court filings in the case.

Before Tuesday's hearing, Calusinski's father, Paul Calusinski, said he's "ecstatic" about the possibility that the court proceedings will lead to his daughter being freed.

"She wants her day in court — to get on the stand and say she didn't do this," he said.

Noting the coroner's office changed the determination of the boy's death to undetermined, Paul Calusinski said: "She should be coming home if there is no crime."

He said she's received support from places as far away as Europe and South Africa.

"She has heard from people all over the world. ... People are following this and behind her," he said.

In front of a crowd of reporters and TV cameras, Zellner contended the new evidence shows Benjamin did not have a fresh skull fracture and, without that, the state's case "collapses."

"We've got absolute concrete evidence now that there was no skull fracture, and that was the basis of the state's case. ... That's huge," Zellner said.

If Shanes consents to an evidentiary hearing, prosecutors and the defense will present medical testimony from witnesses, including the pathologist. The judge could then rule to vacate Calusinski's murder conviction, leaving it to the Lake County prosecutors to decide if they would seek a retrial. Zellner said she will appeal the decision if Shanes rules against allowing the hearing.

Tony Briscoe is a Tribune reporter; Susan Berger is a freelance reporter.

A version of this article appeared in print on April 27, 2016, in the News section of the Chicago Tribune with the headline "Worker in child care death wants conviction tossed - Lawyer says new evidence is key; judge will decide" —
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